ALJDEC decisions subject to certification as final

2012A-1127-ROC · Registrar of Contractors · 2012-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2012

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by corporate Manager Kevin Almeida.

WITNESSES: Ted Gerold, ROC Inspector Glen O’Dell Kevin Almeida

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship with regard to fascia board Respondent installed on Complainant’s house. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors (“Registrar” or “ROC”) into the record, along with Exhibit A—a group of photographs. Testimony was provided from the witnesses above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation of the statutes. FINDINGS OF FACT 1. Respondent is the holder of License No. K-42.215758-D, a specialty dual contracting license issued by the Registrar. The license authorizes Respondent to install and repair roofing for both commercial and residential projects. 2. In late 2010, Respondent performed roofing work at Complainant’s house. In March 2012, Complainant filed a complaint with the ROC. 3. On March 23, 2012, ROC Inspector Ted Gerold inspected Respondent’s work and issued a Corrective Work Order (“CWO”). The CWO addressed twelve items and ordered corrective work for nine of the items. Respondent performed corrective work. 4. At hearing, Complainant agreed that all corrective work ordered in the CWO had been performed to standards. Complainant wanted to address Item 1 of the CWO, which concerned the front fascia board and for which no action was ordered as follows: 1) “Front fascia board across left flat roof is excessively bowed.” This fascia was put on approximately 1 year and 3 months ago and the complainant to date has not painted it. It is still raw wood. This inspector cannot determine the cause of the bowing to be by either installation or weathering. No action is required by the contractor.

It is Complainant’s contention that the wood used for the fascia board was defective. 5. At hearing, Inspector Gerold testified about his conclusion for Item 1 of the CWO. He testified that the exposure of the wood for over one year was a likely cause of any bowing or warping. Because the wood was not painted to protect it shortly after it was installed in November/December 2010—which was the obligation of Complainant—he could not hold Respondent responsible for any bowing that he saw in March 2012. 6. Complainant asserted that the front fascia board was bowed at the time it was installed or shortly thereafter. Complainant submitted Exhibit A, a group of photographs that are undated and show the unpainted fascia board. Complainant testified that he took the photos and, first, that they were taken one week after installation, then 1or 2 weeks after. The photographs do not show the bowing very well, but more importantly show weathering around the nail heads that indicates more time had passed than a few weeks. Because of these problems with the photographs, they are not found to be reliable evidence. Therefore, there is no reliable independent evidence showing that the wood was defective at the time it was installed. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A) (3) by way of A.A.C. R4-9-108 (prohibits poor workmanship), and A.R.S. § 32-1154(A)(23)(requires compliance with a CWO). The evidence does not show violation of either of these two provisions. Complainant admits that Respondent complied with the CWO. In addition, Complainant did not submit evidence sufficient to show that the fascia board wood was defective when it was installed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2012-1127 against Respondent Almeida Roofing, Inc. be dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification.

Done this day, November 5, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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